A Sketch Never Finished Nor Applied
1830?
As the weakness and wants of man naturally lead to an association of
individuals, under a common authority, whereby each may have the protection
of the whole against danger from without, and enjoy in safety within, the
advantages of social intercourse, and an exchange of the necessaries &
comforts of life: in like manner feeble communities, independent of each
other, have resorted to a Union, less intimate, but with common Councils,
for the common safety agst. powerful neighbors, and for the preservation of
justice and peace among themselves. Ancient history furnishes examples of
these confederal associations, tho' with a very imperfect account, of their
structure, and of the attributes and functions of the presiding Authority.
There are examples of modern date also, some of them still existing, the
modifications and transactions of which are sufficiently known.
It remained for the British Colonies, now United States, of North America,
to add to those examples, one of a more interesting character than any of
them: which led to a system without a example ancient or modern, a system
founded on popular rights, and so combing, a federal form with the forms of
individual Republics, as may enable each to supply the defects of the other
and obtain the advantages of both.
Whilst the Colonies enjoyed the protection of the parent Country as it was
called, against foreign danger; and were secured by its superintending
controul, against conflicts among themselves, they continued independent of
each other, under a common, tho' limited dependence, on the parental
Authority. When however the growth of the offspring in strength and in
wealth, awakened the jealousy and tempted the avidity of the parent, into
schemes of usurpation & exaction, the obligation was felt by the former of
uniting their counsels and efforts to avert the impending calamity.
As early as the year 1754, indications having been given of a design in the
British Government to levy contributions on the Colonies, without their
consent; a meeting of Colonial deputies took place at Albany, which
attempted to introduce a compromising substitute, that might at once satisfy
the
British requisitions, and save their own rights from violation. The attempt
had no other effect, than by bringing these rights into a more conspicuous
view, to invigorate the attachment to them, on one side; and to nourish the
haughty & encroaching spirit on the other.
In 1774. The progress made by G. B. in the open assertion of her
pretensions, and in the apprehended purpose of otherwise maintaining them
than by Legislative enactments and declarations, had been such that the
Colonies did not hesitate to assemble, by their deputies, in a formal
Congress, authorized to oppose to the British innovations whatever measures
might be found best adapted to the occasion; without however losing sight of
an eventual reconciliation.
The dissuasive measures of that Congress, being without effect, another
Congress was held in 1775, whose pacific efforts to bring about a change in
the views of the other party, being equally unavailing, and the commencement
of actual hostilities having at length put an end to all hope of
reconciliation; the Congress finding moreover that the popular voice began
to call for an entire & perpetual dissolution of the political ties which
had connected them with G. B., proceeded on the memorable 4th of July, 1776
to declare the 13 Colonies, Independent States.
During the discussions of this solemn Act, a Committee consisting of a
member from each colony had been appointed to prepare & digest a form of
Confederation, for the future management of the common interests, which had
hitherto been left to the discretion of Congress, guided by the exigences of
the contest, and by the known intentions or occasional instructions of the
Colonial Legislatures.
It appears that as early as the 21st. of July 1775, A plan entitled
"Articles of Confederation & perpetual Union of the Colonies" had been
sketched by Doer. Franklin, the plan being on that day submitted by him to
Congress; and tho' not copied into their Journals remaining on their files
in his handwriting. But notwithstanding the term "perpetual" observed in the
title, the articles provided expressly for the event of a return of the
Colonies to a connection with G. Britain.
This sketch became a basis for the plan reported by the Come, on the 12 of
July, now also remaining on the files of Congress, in the handwriting of Mr.
Dickinson. The plan, tho' dated after the Declaration of Independence, was
probably drawn up before that event; since the name of Colonies, not States
is used throughout the draught. The plan reported, was debated and amended
from time to time, till the 17th. of November 1777, when it was agreed to by
Congress, and proposed to the Legislatures of the States, with an
explanatory and recommendatory letter. The ratifications of these by their
Delegates in Congs. duly authorized took place at successive dates; but were
not compleated till March 1. 1781. when Maryland who had made it a
prerequisite that the vacant lands acquired from the British Crown should be
a Common fund, yielded to the persuasion that a final & formal establishment
of the federal Union & Govt. would make a favorable impression not only on
other foreign Nations, but on G. B. herself.
The great difficulty experienced in so framing the fedl. system as to obtain
the unanimity required for its due sanction, may be inferred from the long
interval, and recurring discussions, between the commencement and completion
of the work; from the changes made during its progress; from the language of
Congs. when proposing it to the States, wch. dwelt on the impracticability
of devising a system acceptable to all of them; from the reluctant assent
given by some; and the various alterations proposed by others; and by a
tardiness in others again which produced a special address to them from
Congs. enforcing the duty of sacrificing local considerations and favorite
opinions to the public safety, and the necessary harmony: Nor was the assent
of some of the States finally yielded without strong protests against
particular articles, and a reliance on future amendments removing their
objections.
It is to be recollected, no doubt, that these delays might be occasioned in
some degree, by an occupation of the public Councils both general & local,
with the deliberations and measures, essential to a Revolutionary struggle;
But there must have been a balance for these causes, in the obvious motives
to hasten the establishment of a regular and efficient Govt; and in the
tendency of the crisis to repress opinions and pretensions, which might be
inflexible in another state of things.
The principal difficulties which embarrassed the progress, and retarded the
completion of the plan of Confederation, may be traced to 1. the natural
repugnance of the parties to a relinquishment of power: 2 a natural jealousy
of its abuse in other hands than their own: 3 the rule of suffrage among
parties unequal in size, but equal in sovereignty. 4 the ratio of
contributions in money and in troops, among parties, whose inequality in
size did not correspond with that of their wealth, or of their military or
free population. 5. the selection and definition of the powers, at once
necessary to the federal head, and safe to the several members.
To these sources of difficulty, incident to the formation of all such
Confederacies, were added two others one of a temporary, the other of a
permanent nature. The first was the case of the Crown lands, so called
because they had been held by the British Crown, and being ungranted to
individuals when its authority ceased, were considered by the States within
whose charters or asserted limits they lay, as devolving on them; whilst it
was contended by the others, that being wrested from the dethroned
authority, by the equal exertion of all, they resulted of right and in
equity to the benefit of all. The lands being of vast extent and of growing
value, were the occasion of much discussion & heart-burning; & proved the
most obstinate of the impediments to an earlier consummation of the plan of
federal Govt. The State of Maryland the last that acceded to it held out as
already noticed, till March i, 1781, and then yielded only to the hope that
by giving a stable & authoritative character to the Confederation, a
successful termination of the Contest might be accelerated. The dispute was
happily compromised by successive surrenders of portions of the territory by
the States having exclusive claims to it, and acceptances of them by
Congress.
The other source of dissatisfaction was the peculiar situation of some of
the States, which having no convenient ports for foreign commerce, were
subject to be taxed by their neighbors, thro whose ports, their commerce was
carryed on. New Jersey, placed between Phila. & N. York, was likened to a
cask tapped at both ends; and N. Carolina, between Virga. & S. Carolina to a
patient bleeding at both arms. The Articles of Confederation provided no
remedy for the complaint: which produced a strong protest on the part of N.
Jersey; and never ceased to be a source of dissatisfaction & discord, until
the new Constitution, superseded the old.
But the radical infirmity of the "arts, of Confederation" was the dependence
of Congs. on the voluntary and simultaneous compliance with its
Requisitions, by so many independent Communities, each consulting more or
less its particular interests & convenience and distrusting the compliance
of the others. Whilst the paper emissions of Congs. continued to circulate
they were employed as a sinew of war, like gold & silver. When that ceased
to be the case, the fatal defect of the political System was felt in its
alarming force. The war was merely kept alive and brought to a successful
conclusion by such foreign aids and temporary expedients as could be
applied; a hope prevailing with many, and a wish with all, that a state of
peace, and the sources of prosperity opened by it, would give to the
Confederacy in practice, the efficiency which had been inferred from its
theory.
The close of the war however brought no cure for the public embarrassments.
The States relieved from the pressure of foreign danger, and flushed with
the enjoyment of independent and sovereign power; [instead of a diminished
disposition to part with it,] persevered in omissions and in measures
incompatible with their relations to the Federal Govt and with those among
themselves;
Having served as a member of Congs. through the period between Mar. 1780 &
the arrival of peace in 1783, I had become intimately acquainted with the
public distresses and the causes of them. I had observed the successful
opposition to every attempt to procure a remedy by new grants of power to
Congs. I had found moreover that despair of success hung over the
compromising provision of April 1783 for the public necessities which had
been so elaborately planned, and so impressively recommended to the States.*
Sympathizing, under this aspect of affairs, in the alarm of the friends of
free Govt, at the threatened danger of an abortive result to the great &
perhaps last experiment in its favour, I could not be insensible to the
obligation to co-operate as far as I could in averting the
*See address of Congress.
calamity. With this view I acceded to the desire of my fellow Citizens of
the County that I should be one of its representatives in the Legislature,
hoping that I might there best contribute to inculcate the critical posture
to which the Revolutionary cause was reduced, and the merit of a leading
agency of the State in bringing about a rescue of the Union and the
blessings of liberty staked on it, from an impending catastrophe.
It required but little time after taking my seat in the House of Delegates
in May 1784 to discover that, however favorable the general disposition of
the State might be towards the Confederacy the Legislature retained the
aversion of its predecessors to transfers of power from the State to the
Govt. of the Union; notwithstanding the urgent demands of the Federal
Treasury; the glaring inadequacy of the authorized mode of supplying it, the
rapid growth of anarchy in the Fedl. System, and the animosity kindled among
the States by their conflicting regulations.
The temper of the Legislature & the wayward course of its proceedings may be
gathered from the Journals of its Sessions in the years 1784 & 1785.
The failure however of the varied propositions in the Legislature, for
enlarging the powers of Congress, the continued failure of the efforts of
Congs. to obtain from them the means of providing for the debts of the
Revolution; and of countervailing the commercial laws of G. B. a source of
much irritation & agst. which the separate efforts of the States were found
worse than abortive; these Considerations with the lights thrown on the
whole subject, by the free & full discussion it had undergone led to an
general acquiescence in the Resoln. passed, on the 21. of Jany 1786. which
proposed & invited a meeting of Deputies from all the States to "insert the
Resol (See Journal.) 1.
The resolution had been brought forward some weeks before on the failure of
a proposed grant of power to Congress to collect a revenue from commerce,
which had been abandoned by its friends in consequence of material
alterations made in the grant by a Committee of the whole. The Resolution
tho introduced by Mr. Tyler an influencial member, who having never served
in Congress, had more the ear of the House than those whose services there
exposed them to an imputable bias, was so little acceptable that it was not
then persisted in. Being now revived by him, on the last day of the Session,
and being the alternative of adjourning without any effort for the crisis in
the affairs of the Union, it obtained a general vote; less however with some
of its friends from a confidence in the success of the experiment than from
a hope that it might prove a step to a more comprehensive & adequate
provision for the wants of the Confederacy.
It happened also that Commissioners who had been appointed by Virga. &
Maryd. to settle the jurisdiction on waters dividing the two States had,
apart from their official reports, recommended a uniformity in the
regulations of the 2 States on several subjects & particularly on those
having relation to foreign trade. It apeared at the same time that Maryd.
had deemed a concurrence of her neighbors Pena. & Delaware indispensable in
such a case, who for like reasons would require that of their neighbors. So
apt and forceable an illustration of the necessity of a uniformity
throughout all the States could not but favour the passage of a Resolution
which proposed a Convention having that for its object.
The commissioners appointed by the Legisl: & who attended the Convention
were E. Randolph the Attorney of the State, St. Geo: Tucker & J. M. The
designation of the time & place for its meeting to be proposed and
communicated to the States having been left to the Comrs. they named for the
time early September and for the place the City of Annapolis avoiding the
residence of Congs. and large Commercial Cities as liable to suspicions of
an extraneous influence.
Altho the invited Meeting appeared to be generally favored, five States only
assembled; some failing to make appointments, and some of the individuals
appointed not hastening their attendance, the result in both cases being
ascribed mainly, to a belief that the time had not arrived for such a
political reform, as might be expected from a further experience of its
necessity.
But in the interval between the proposal of the Convention and the time of
its meeting, such had been the advance of public opinion in the desired
direction, stimulated as it had been by the effect of the contemplated
object, of the meeting, in turning the genal attention to the Critical State
of things, and in calling forth the sentiments and exertions of the most
enlightened & influencial patriots, that the Convention thin as it was did
not scruple to decline the limited task assigned to it and to recommend to
the States a Convention with powers adequate to the occasion. Nor was it
unnoticed that the commission of the N. Jersey Deputation, had extended its
object to a general provision for the exigencies of the Union. A
recommendation for this enlarged purpose was accordingly reported by a Come,
to whom the subject had been referred. It was drafted by Col: H. and finally
agreed to unanimously in the following form. Insert it.
The recommendation was well recd. by the Legislature of Virga. which
happened to be the first that acted on it, and the example of her compliance
was made as conciliatory and impressive as possible. The Legislature were
unanimous or very nearly so on the occasion, and as a proof of the magnitude
& solemnity attached to it, they placed Genl. W. at the head of the
Deputation from the State; and as a proof of the deep interest he felt in
the case he overstepped the obstacles to his acceptance of the appointment.
The law complying with the recommendation from Annapolis was in the terms
following:
A resort to a General Convention to remodel the Confederacy, was not a new
idea. It had entered at an early date into the conversations and
speculations of the most reflecting & foreseeing observers of the inadequacy
of the powers allowed to Congress. In a pamphlet published in May 81 at the
seat of Congs. Pelatiah Webster an able tho' not conspicuous Citizen, after
discussing the fiscal system of the U. States, and suggesting among other
remedial provisions including a national Bank remarks that "the Authority of
Congs. at present is very inadequate to the performance of their duties; and
this indicates the necessity of their calling a Continental Convention for
the express purpose of ascertaining, defining, enlarging, and limiting, the
duties & powers of their Constitution."
On the 1. day of Apl. 1783, Col. Hamilton, in a debate in Congs. observed
that
He alluded probably to [see Life of Schuyler in Longacre It does not appear
however that his expectation had been fulfilled ]
In a letter to J M from R H Lee then President of Congs dated Novr 26, 1784
He says The answer of J M remarks
In 1785, Noah Webster whose pol & other valuable writ ings had made him
known to the public, in one of his pubh cations of American policy brought
into view the same resort for supplying the defects of the Fedl System [see
his life in Longacre]
The proposed & expected Convention at Annapolis the first of a general
character that appears to have been realized, & the state of the public mind
awakened by it had attracted the particular attention of Congs and favored
the idea there of a Convention with fuller powers for amending the
Confederacy
It does not appear that in any of these cases, the reformed system was to be
otherwise sanctioned than by the Legislative authy of the States, nor
whether or how far, a change was to be made in the structure of the
Depository of Federal powers The act of Virga providing for the Convention
at Philada , was succeeded by appointments from other States as their
Legislatures were assembled, the appointments being selec tions from the
most experienced & highest standing Citizens Rh I was the only exception to
a compliance with the rec ommendation from Annapolis, well known to have
been swayed by an obdurate adherence to an advantage which her position gave
her of taxing her neighbors thro' their con sumption of imported supplies,
an advantage which it was foreseen would be taken from her by a revisal of
the "Articles of Confederation
As the pub mind had been ripened for a salutary Reform of the pol System, in
the interval between the proposal & the meeting, of Comrs at Annapolis, the
interval between the last event, and the meeting of Deps at Phila had
continued to develop more & more the necessity & the extent of a Systematic
provision for the preservation and Govt of the Union, among the ripening
incidents was the Insurrection of Shays, in Massts against her Govt, which
was with difficulty suppressed, notwithstanding the influence on the
insurgents of an appre hended interposition of the Fedl troops
At the date of the Convention, the aspect & retrospect of the pol condition
of the U S could not but fill the pub mind with a gloom which was relieved
only by a hope that so select a Body would devise an adequate remedy for the
exist ing and prospective evils so impressively demanding it
It was seen that the public debt rendered so sacred by the cause in which it
had been incurred remained without any provision for its payment The
reiterated and elaborate efforts of Cong to procure from the States a more
adequate power to raise the means of payment had failed The effect of the or
dinary requisitions of Congress had only displayed the inefficiency of the
authy making them, none of the States having duly complied with them, some
having failed altogether or nearly so, and in one instance, that of N Jersey
a compliance was expressly refused, nor was more yielded to the
expostulations of members of Congs deputed to her Legislature, than a mere
repeal of the law, without a compliance [see letter of Grayson to J M
The want of Authy in Congs to regulate Commerce had produced in Foreign
nations particularly G B a monopoliz ing policy injurious to the trade of
the U S and destructive to their navigation, the imbecihciry and anticipated
dissolu tion of the Confederacy extmguishg all apprehensions of a
Countervailing policy on the part of the U States
The same want of a general power over Commerce, led to an exercise of the
power separately, by the States, wch not only proved abortive, but
engendered rival, conflicting and angry regulations Besides the vain
attempts to supply their respective treasuries by imposts, which turned
their commerce into the neighbouring ports, and to co-erce a relaxation of
the British monopoly of the W Inda navigation, which was attempted by Virga
[see the Journal of ] the States having ports for foreign commerce, taxed &
irritated the ad joining States, trading thro' them, as N Y Pena Virga & S
Carolina Some of the States, as Connecticut, taxed imports as from Massts
higher than imports even from G B of wch Massts complained to Virga and
doubtless to other States [See letter of J M In sundry instances as of N Y N
J Pa &
Maryd [see ] the navigation laws treated the Citizens other States as aliens
In certain cases the authy of the Confederacy was disre garded, as in
violations not only of the Treaty of peace, but of Treaties with France &
Holland, which were complained of to Congs
In other cases the Fedl Authy was violated by Treaties & wars with Indians,
as by Geo by troops raised & kept up witht the consent of Congs as by Massts
by compacts witht the consent of Congs as between Pena and N Jersey, and
between Virga & Maryd From the Legisl Journals of Virga it appears, that a
vote refusing to apply for a sanction of Congs was followed by a vote agst
the communication of the Compact to Congs
In the internal administration of the States a violation of Contracts had
become familiar in the form of depreciated pa per made a legal tender, of
property substituted for money, of Instalment laws, and of the occlusions of
the Courts of Justice, although evident that all such interferences affected
the rights of other States, relatively creditor, as well as Citizens
Creditors within the State
Among the defects which had been severely felt was that of a uniformity in
cases requiring it, as laws of naturalization, bankruptcy, a Coercive
authority operating on individuals and a guaranty of the internal
tranquility of the States
As natural consequences of this distracted and disheartening condition of
the union, the Fedl Authy had ceased to be respected abroad, and
dispositions shewn there, particularly in G B , to take advantage of its
imbecility, and to speculate on its approaching downfall, at home it had
lost all confidence & credit, the unstable and unjust career of the States
had also forfeited the respect & confidence essential to order and good
Govt, involving a general decay of confidence & credit be tween man & man It
was found moreover, that those least partial to popular Govt, or most
distrustful of its efficacy were yielding to anticipations, that from an
increase of the confu sion a Govt might result more congenial with their
taste or their opinions, whilst those most devoted to the principles and
forms of Republics, were alarmed for the cause of liberty itself, at stake
in the American Experiment, and anxious for a system that wd avoid the
inefficacy of a mere confederacy without passing into the opposite extreme
of a consolidated govt it was known that there were individuals who had
betrayed a bias towards Monarchy [see Knox to G W & him to Jay] (Marshall's
life) and there had always been some not unfavorable to a partition of the
Union into several Confeder acies, either from a better chance of figuring
on a Sectional Theatre, or that the Sections would require stronger Govts ,
or by their hostile conflicts lead to a monarchical consolida tion The idea
of a dismemberment had recently made its ap pearance in the Newspapers
Such were the defects, the deformities, the diseases and the ominous
prospects, for which the Convention were to pro vide a remedy, and which
ought never to be overlooked in ex pounding & appreciating the
Constitutional Charter the remedy that was provided
As a sketch on paper, the earliest perhaps of a Constitutional Govt for the
Union [organized into the regular De partments with physical means operating
on individuals] to be sanctioned by the people of the States, acting in
their original & sovereign character, was contained in a letter of Apl 8
1787 from J M to Govr Randolph, a copy of the letter is here inserted
The feature in the letter which vested in the general Authy a negative on
the laws of the States, was suggested by the negative in the head of the
British Empire, which prevented collisions between the parts & the whole,
and between the parts themselves It was supposed that the substitution, of
an elective and responsible authority for an hereditary and irre sponsible
one, would avoid the appearance even of a depar ture from the principle of
Republicanism But altho' the subject was so viewed in the Convention, and
the votes on it were more than once equally divided, it was finally & justly
abandoned see note for for this erasure substitute the amendt marked * for
this page [as, apart from other objec tions, it was not practicable among so
many states, increasing in number, and enacting, each of them, so many laws
Instead of the proposed negative, the objects of it were left as finally
provided for in the Constitution ]
On the arrival of the Virginia Deputies at Philada it occurred to them that
from the early and prominent part taken by that State in bringing about the
Convention some initiative step might be expected from them. The Resolutions
introduced by Governor Randolph were the result of a Consultation on the
subject; with an understanding that they left all the Deputies entirely open
to the lights of discussion, and free to concur in any alterations or
modifications which their reflections and judgments might approve. The
Resolutions as the Journals shew became the basis on which the proceedings
of the Convention commenced, and to the developments, variations and
modifications of which the plan of Govt. proposed by the Convention may be
traced.
The curiosity I had felt during my researches into the History of the most
distinguished Confederacies, particularly those of antiquity, and the
deficiency I found in the means of satisfying it more especially in what
related to the process, the principles, the reasons, & the anticipations,
which prevailed in the formation of them, determined me to preserve as far
as I could an exact account of what might pass in the Convention whilst
executing its trust, with the magnitude of which I was duly impressed, as I
was with the gratification promised to future curiosity by an authentic
exhibition of the objects, the opinions, & the reasonings from which the new
System of Govt. was to receive its peculiar structure & organization. Nor
was I unaware of the value of such a contribution to the fund of materials
for the History of a Constitution on which would be staked the happiness of
a people great even in its infancy, and possibly the cause of Liberty
throught the world.
In pursuance of the task I had assumed I chose a seat in front of the
presiding member, with the other members on my right & left hands. In this
favorable position for hearing all that passed, I noted in terms legible &
in abreviations & marks intelligible to myself what was read from the Chair
or spoken by the members; and losing not a moment unnecessarily between the
adjournment & reassembling of the Convention I was enabled to write out my
daily notes [see page 18 — during the session or within a few finishing days
after its close — see pa. 18 in the extent and form preserved in my own hand
on my files.
In the labour & correctness of doing this, I was not a little aided by
practice & by a familiarity with the style and the train of observation &
reasoning which characterized the principal speakers. It happened, also that
I was not absent a single day, nor more than a cassual fraction of an hour
in any day, so that I could not have lost a single speech, unless a very
short one. Insert the Remark on the — slip of paper marked A.
It may be proper to remark, that, with a very few exceptions, the speeches
were neither furnished, nor revised, nor sanctioned, by the speakers, but
written out from my notes, aided by the freshness of my recollections. A
further remark may be proper, that views of the subject might occasionally
be presented in the speeches and proceedings, with a latent reference to a
compromise on some middle ground, by mutual concessions. The exceptions
alluded to were, — first, the sketch furnished by Mr. Randolph of his speech
on the introduction of his propositions, on the twenty-ninth day of May;
secondly, the speech of Mr. Hamilton, who happened to call on me when
putting the last hand to it, and who acknowledged its fidelity, without
suggesting more than a very few verbal alterations which were made; thirdly,
the speech of Gouverneur Morris on the second day of May, which was
communicated to him on a like occasion, and who acquiesced in it without
even a verbal change. The correctness of his language and the distinctness
of his enunciation were particularly favorable to a reporter. The speeches
of Doctor Franklin, excepting a few brief ones, were copied from the written
ones read to the Convention by his colleague, Mr. Wilson, it being
inconvenient to the Doctor to remain long on his feet.
Of the ability & intelligence of those who composed the Convention, the
debates & proceedings may be a test; as the character of the work which was
the offspring of their deliberations must be tested by the experience of the
future, added to that of the nearly half century which has passed.
But whatever may be the judgment pronounced on the competency of the
architects of the Constitution, or whatever may be the destiny, of the
edifice prepared by them, I feel it a duty to express my profound & solemn
conviction, derived from my intimate opportunity of observing & appreciating
the views of the Convention, collectively & individually, that
there never was an assembly of men, charged with a great & arduous trust,
who were more pure in their motives, or more exclusively or anxiously
devoted to the object committed to them, than were the members of the
Federal Convention of 1787, to the object of devising and proposing a
constitutional system which would best supply the defects of that which it
was to replace, and best secure the permanent liberty and happiness of their
country.